Ronald OMAN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
No. 46S03-9909-CR-00495.
Supreme Court of Indiana.
Sept. 26, 2000.
Jeffrey A. Modisett, Attorney General of Indiana, Priscilla J. Fossum, Stephen K. Tesmer, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
ON PETITION TO TRANSFER
SULLIVAN, Justice.
Defendant Ronald Oman was the driver of one of two fire trucks that collided en route to a fire call. Oman submitted to a urinalysis as a condition of his employment in a safety-sensitive job. Acting on a tip that Oman had tested positive for marijuana, a deputy prosecutor subpoenaed the
Background
Defendant, Ronald Oman, is a firefighter employed by the city of Michigan City, Indiana. Michigan City has in place a Drug and Alcohol Free Workplace Ordinance (“Ordinance“). The Ordinance provides that upon certain events, employees must submit to a urine test and a breath test to screen for illegal substances and alcohol. Refusal to submit to the tests results in an automatic thirty-day suspension without pay and risk of termination. The Ordinance includes a confidentiality provision which states, inter alia, that test results will be maintained only in the employee‘s confidential file, that test results will not be disclosed without the employee‘s written consent, but that disclosure will take place when “compelled by law or by judicial and administrative process.”
On April 28, 1998, Oman was the driver of one of two fire trucks that collided en route to a fire call. As per the Ordinance, both drivers were directed by their supervisor to submit to post-accident toxicological testing and thus were driven from the scene to NIMLS, a city-approved lab for drug testing.1
That evening, the Assistant Chief of Police called and told Officer Kunkle2 that an unidentified source had informed him that Oman‘s drug tests were positive. Based on this information, Officer Kunkle asked the deputy prosecutor to subpoena Oman‘s test results. Without seeking leave of court, the deputy prosecutor issued a subpoena duces tecum directing the testing lab to produce Oman‘s test results. The lab complied, and the results revealed that Oman had tested positive for marijuana. He was charged with operating a vehicle with a controlled substance in his blood, a Class C misdemeanor.3 Oman moved to suppress his test results. The trial court denied his motion and certified the issue for interlocutory appeal.
The Court of Appeals reversed, finding that the prosecutor did not have probable cause to issue the subpoena duces tecum in that it was based on “unreliable” information; that the improperly issued subpoena thus represented an “unreasonable” demand on the lab; and that the use of Oman‘s drug test results in a criminal prosecution against him violated his Fourth Amendment rights. Oman v. State, 707 N.E.2d 325 (Ind.Ct.App.1999).
This appeal presents several interesting and important questions, which we order for discussion as follows: (1) Must a prosecutor acting without a grand jury seek leave of a court before issuing an investigative “prosecutor‘s” subpoena duces tecum to a third party? (2) If so, what are the appropriate criteria for evaluating the application and issuance of a prosecutor‘s investigative subpoena duces tecum? (3) Are government drug testing programs such as Michigan City‘s constitutionally sound? (4) Are toxicological results from these drug testing programs admissible in a criminal proceeding against the employee? And (5) did the trial court err in
Discussion
We first address the State‘s claim that Oman does not have standing to challenge the validity of a subpoena issued to the NIMLS lab, a non-party. A party generally lacks standing to challenge the validity of a subpoena issued to a third party. See, e.g., Leonard v. State, 249 Ind. 361, 365, 232 N.E.2d 882, 885 (1968); Cox v. State, 181 Ind.App. 476, 392 N.E.2d 496 (1979). However, a party may establish standing if he or she demonstrates a personal stake in the outcome of the lawsuit and if he or she has sustained or is in immediate danger of sustaining some direct injury as a result of the conduct at issue. See Hammes v. Brumley, 659 N.E.2d 1021, 1029 (Ind.1995); Cody v. State, 702 N.E.2d 364, 367 (Ind.Ct.App.1998).
Here, Oman challenges the validity of a subpoena issued to a third party lab that produced evidence forming, in part, the State‘s charge against him for driving while intoxicated. We have little difficulty in finding that Oman had a legitimate interest in challenging the validity of this evidence. Cf. United States v. Raineri, 670 F.2d 702, 712 (7th Cir.), cert. denied, 459 U.S. 1035 (1982) (“A party has standing to move to quash a subpoena addressed to another if the subpoena infringes upon the movant‘s legitimate interests.“); United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) (analyzing a defendant‘s claim that subpoenas duces tecum were defective in that they violated his reasonable expectation of privacy in bank records despite the fact that the prosecuting attorney obtained the records from a third party bank). Accordingly, we turn our attention to the merits of this appeal.
I
While engaged in the “competitive enterprise of ferreting out crime,” Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948), Indiana prosecutors must occasionally invoke their statutory power to gather evidence while conducting pre-charge investigations.4
Whenever any prosecuting or district attorney shall receive information of the commission of any felony or such district attorney of the commission of any misdemeanor he shall cause process to issue from a court having jurisdiction to issue the same, (except the circuit court,) to the proper officer, directing him to subpoena the persons therein named likely to be acquainted with the commission of such felony or misdemeanor, and shall examine any person so subpoenaed before such court touching such offense....
Id. (emphasis added). The State contends that this statute authorizes a prosecutor - acting without a grand jury - to issue an investigative subpoena duces tecum to a third party for the production of documentary evidence without processing the request through an appropriate court. Oman disagrees with this contention.
A
We note initially that the plain language of the statute - our first line of inquiry - evinces a legislative intent for “court” involvement during the pre-charge, investigative stage. However, it is not altogether clear to us, and neither party has contended, that the statute literally requires a prosecutor to seek leave of court before issuing an investigative subpoena.
Our research has identified two older Indiana decisions that appear to approve prosecutor subpoenas ad testificandum, issued without court review, to compel answers to investigative questions. See, e.g., Ellison v. State, 125 Ind. 492, 496, 24 N.E. 739, 741 (1890); West v. State, 32 Ind.App. 161, 69 N.E. 465 (1904). These cases differ from the case before us in that they involve subpoenas ad testificandum (issued to compel a witness to give a pre-charge, out-of-court statement or to eventually testify in court) as opposed to subpoenas duces tecum (issued for the production of tangible evidence).
We also observe that our recent decisions concerning the propriety of subpoenas duces tecum are not particularly instructive in that they address subpoenas issued after criminal charges have been filed. See In re WTHR-TV, 693 N.E.2d 1 (Ind.1998) (holding that the rules of trial procedure generally apply to criminal proceedings absent a conflicting criminal rule); Rita v. State, 674 N.E.2d 968 (Ind.1996) (construing
In In re Order for Indiana Bell Telephone to Disclose Records, 274 Ind. 131, 409 N.E.2d 1089 (1980), the police received information that two escapees from the Monroe County Jail were making long distance collect telephone calls to their parents. The police provided this information to the prosecutor who in turn filed an order to produce in the Monroe Superior Court, directing “Indiana Bell to reveal to the prosecutor the long distance telephone records of two specific customers who were the parents of the two escapees.” Id. at 132, 409 N.E.2d at 1090.6
As a matter of first impression, this Court decided “whether a prosecutor acting without a grand jury can subpoena a witness to reveal information concerning the activities of a suspected felon.” Id. at 134, 409 N.E.2d at 1091 (emphasis added). After reviewing the relevant statutes - including that which empowered a prosecutor to charge an individual without first submitting the evidence to a grand jury - this Court held that a prosecutor “ha[d] the same ability to accumulate evidence as the grand jury,” so that he or she could act without a grand jury in subpoenaing a witness to reveal information. Id. at 135, 409 N.E.2d at 1091.
In further support of this holding, this Court considered the same statute at issue in this case,
Oman finds ample support in this statement for his position and not surprisingly claims, “It is clear from this language that when a prosecutor issues subpoenas under
B
We acknowledge that both parties present cogent arguments for their respective positions.7 However, we side with Oman. We find the rationale for our statement in Indiana Bell that a prosecutor must act “through an appropriate court” to be persuasive here given the factual similarities of the two cases. In Indiana Bell, the prosecutor issued an investigative subpoena duces tecum to a third party telephone company for the production of otherwise confidential telephone records. In this case, the prosecutor issued a similar investigative subpoena duces tecum to a third party laboratory for the production of otherwise confidential drug test results. And this interpretation is consistent with the language of
Given that this statutory provision has existed for almost 150 years without definitive interpretation on this point - and what interpretation there has been appears to approve prosecutor subpoenas without court review9 - we decline to ap-
C
One final issue in this regard requires our attention. The State claims that any decision we make concerning the prosecutor‘s “ability to investigate crime and collect evidence via an investigatory subpoena” will presumably impact a grand jury‘s ability to do the same. We disagree.
A grand jury derives its investigative power from a different statute, the language of which does not evince a legislative intent for direct court involvement during the pre-charge, investigative stage: “A subpoena duces tecum or subpoena ad testificandum summoning a witness to appear before the grand jury shall be issued by the clerk upon the request of the grand jury or prosecuting attorney. The subpoena must contain a statement of the general nature of the grand jury inquiry.”
Furthermore, indirect judicial oversight is an inherent part of all grand jury proceedings, which by their nature are secretive: this arrangement militates against the possible prejudicial impact of testimonial or physical evidence improperly gathered by a prosecutor during his or her pre-charge investigation. See
We now proceed to identify the appropriate standard for the trial court to apply to the application and issuance of an investigative subpoena duces tecum for the production of documentary evidence maintained by a third party.
II
A
We begin our analysis of the criteria for concluding that an investigative subpoena has been properly issued by reviewing the decision cited by the Court of Appeals as its basis for finding that the subpoena was unreasonable. In State ex rel. Pollard v. Criminal Court of Marion County, 263 Ind. 236, 329 N.E.2d 573 (1975), this Court considered whether the statutory power of an Indiana grand jury was “limited to the
Next, the Court considered the “constitutional safeguards” which delimited or controlled the “realm of permissible grand jury inquiry.” Id. at 251-55, 329 N.E.2d at 584-86.
The fourth amendment requirement of “probable cause, supported by oath or affirmation” is literally applicable only to warrants. See Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 209, 66 S.Ct. 494, 90 L.Ed. 614 (1946). Nevertheless, fourth amendment requirements of probable cause have been interpreted as applicable to subpoenas duces tecum to the extent that the grand jury or the prosecutor in issuing such subpoenas may not act arbitrarily or in excess of their statutory authority.
Id. at 253, 329 N.E.2d at 586 (emphases added). After identifying that a standard other than probable cause should logically apply to evaluate investigative subpoenas,12 the Pollard Court then adopted the three-factor standard for reasonableness established by the United States Supreme Court in See v. City of Seattle, 387 U.S. 541, 544, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967):
The greatest protection which the fourth amendment affords a witness subject to a grand jury subpoena duces tecum is the requirement of reasonableness.... And as summarized in See v. City of Seattle (1967), 387 U.S. 541, 544, 87 S.Ct. 1737, 1740, 18 L.Ed.2d 943, 947, the requirement is “that the subpoena be [(1)] sufficiently limited in scope, [(2)] relevant in purpose, and [(3)] specific in directive so that compliance will not be unreasonably burdensome.”
Pollard, 263 Ind. at 254, 329 N.E.2d at 586 (emphases added).
We reaffirm this standard as it applies to the issue under consideration in Pollard: a party requesting a trial court to enforce, modify or quash a subpoena duces tecum already issued. See also Sweeney v. State, 704 N.E.2d 86, 108 (Ind.1998) (applying a reasonableness standard to the county coroner‘s request to quash a subpoena duces tecum issued by the defendant).
We pause, however, to note important differences in the federal subpoena system - not fully developed when Pollard was decided - before adopting the three-factor City of Seattle test for reviewing the application and issuance of a prosecutor‘s investigative subpoena. See supra note 1 (noting that a federal prosecutor does not possess investigative subpoena power independent from the grand jury process).
The standard of “reasonableness” is unquestionably the touchstone of a properly issued federal subpoena; however, the United States Supreme Court has looked to the various contexts in which federal subpoenas are issued to determine the appropriate test. See R. Enters., Inc., 498 U.S. at 299, 111 S.Ct. 722 (“[W]hat is reasonable” in evaluating investigative subpoenas duces tecum “depends on the context.“) (internal quotations omitted).
The highest standard is applied to federal prosecutors who issue post-charge “trial subpoenas” in anticipation of trial because they must “clear three hurdles: (1) relevancy; (2) admissibility; [and] (3) specificity.” United States v. Nixon, 418 U.S. 683, 700, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (emphasis added). Conversely, the lowest standard is reserved for federal grand jury subpoenas (by their nature, investigative and issued pre-charge), which are “presumed to be reasonable, [with] the burden of showing unreasonableness ... on the recipient who seeks to avoid compliance.” R. Enters., Inc., 498 U.S. at 301, 111 S.Ct. 722.13 Finally, pre-charge investigative subpoenas issued by administrative agencies - entities with both “investigative” duties akin to a grand jury and “accusatory duties” akin to a prosecutor, United States v. Morton Salt Co., 338 U.S. 632, 643, 70 S.Ct. 357, 94 L.Ed. 401 (1950) - need only be “sufficiently limited in scope, relevant in purpose, and specific in directive,” Donovan v. Lone Steer, Inc., 464 U.S. 408, 415, 104 S.Ct. 769, 78 L.Ed.2d 567 (1984) (quoting City of Seattle, 387 U.S. at 544, and citing Morton Salt, 338 U.S. at 652-53).14
We view Indiana prosecutors - acting without a grand jury in gathering information to decide whether to bring criminal charges - as assuming a role similar to that of federal governmental agencies empowered with both “investigative and accusatory duties.” Morton Salt, 338 U.S. at 643 (“When investigative and accusatory duties are delegated by statute to an administrative body, it, too, may take steps to inform itself as to whether there is probable violation of the law.“).15 As such,
This standard of reasonableness incorporates appropriate constitutional safeguards designed to limit overzealous prosecutors and at the same time minimize judicial second-guessing that could unnecessarily bog down pre-charge investigations.17 Cf. R. Enters., Inc., 498 U.S. at 298-301 (holding that the more demanding three-factor test for a “trial subpoena” announced in Nixon did not apply in grand jury proceedings, so as not to “saddle [the investigative entity] with minitrials and preliminary showings [that] would assuredly impede its investigation and frustrate the public‘s interest in the fair and expeditious administration of the criminal laws“) (internal quotation marks omitted).
To reiterate, a properly issued investigative subpoena - one that is reasonable under the Fourth Amendment - must only be: (1) relevant in purpose; (2) sufficiently limited in scope, and (3) specific in directive so that compliance will not be unreasonably burdensome. Pollard, 263 Ind. at 254, 329 N.E.2d at 586; see also Johnson v. State, 925 S.W.2d 834, 835-36 (Mo.1996) (upholding the constitutionality of Missouri‘s prosecutor subpoena statute, which is similar to
III
Before we consider whether the trial court erred in denying Oman‘s motion to suppress the results of his post-accident test, we address the constitutionality of Michigan City‘s Ordinance and whether the results of Oman‘s administrative drug test can be used in a criminal prosecution against him. The Court of Appeals found that the use of such “government-compelled drug tests in criminal prosecutions” violated Oman‘s constitutional rights under the Fourth Amendment. Oman, 707 N.E.2d at 329. We disagree.
A
As a matter of federal constitutional law, we find this case governed by principles enunciated by the United States Supreme Court in Skinner v. Railway Labor Executives’ Ass‘n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989), and the companion case of National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989).19
In both Skinner and Von Raab, the Supreme Court upheld the constitutionality of government testing programs - similar to Michigan City‘s Ordinance20 - by recognizing that the effected employees were engaged in safety-sensitive tasks, so that “special needs” existed beyond normal law enforcement to justify a departure from the usual warrant and probable cause requirements of the Fourth Amendment.21 Von Raab, 489 U.S. at 665-66 (discussing Skinner). The Supreme Court, however, was careful to note the “administrative purpose” of both testing programs, neither of which “was designed as ‘a “pretext” to enable law enforcement to gather evidence of penal law violations.‘” Skinner, 489 U.S. at 621 n. 5 (quoting New York v. Burger, 482 U.S. 691, 716-17 n. 27, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987)); see also Von Raab, 489 U.S. at 666 (“It is clear that the Customs Service‘s drug-testing program is not designed to serve the ordinary needs of law enforcement.“).
And while we acknowledge that the Supreme Court has left open the question of governmental employers using their administrative testing programs to pursue criminal drug use convictions against employees, see id., the record does not establish that occurred in this case. Here, the prosecutor was pursuing a criminal investigation based upon: (1) the knowledge that two fire trucks, with lights and sirens on, had collided during a fire run, and (2) a tip that one of the drivers had tested positive on his post-accident drug test.
In light of the substantial authority establishing the constitutionality of administrative testing programs such as the Ordinance,24 and in the absence of any authority which per se shields the results of constitutionally sound testing programs from valid legal compulsory process, we proceed to determine whether, on the facts
B
In addition to the aforementioned general propositions, the trial judge also considered Oman‘s claims (1) that he “was compelled to undertake the drug and alcohol test in question as a condition of his continued employment,” and (2) that the results of his drug and alcohol test were received by law enforcement authorities “in violation of the confidentiality provisions of the ordinance under which the test was compelled.” (R. at 36-37; Order on Defendant‘s Motion to Suppress).
B-1
Oman‘s contention that he was “compelled to submit” to post-accident toxicological testing is simply without merit. Both in his brief, see Appellant‘s Br. at 12 (citing Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) (Fifth Amendment case)), and at oral argument, Oman claimed he was “compelled” to choose between toxicological testing or maintaining his employment in violation of his constitutional right against self-incrimination. Toxicological samples, however, are simply not evidence of a testimonial or communicative nature protected by the Fifth Amendment. And it makes no difference whether law enforcement compelled the test results while pursuing a criminal investigation, see Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), or whether the governmental employer (i.e., non-law enforcement) compelled the test results as part of an administrative testing program, see Skinner, 489 U.S. at 625 (analyzing Schmerber).
Furthermore, Oman had agreed to submit to post-accident drug testing as a condition of his employment with Michigan City in a safety-sensitive job. If Oman had objected to this or any other provision prior to the accident, he could have sought employment elsewhere. If Oman had objected to the testing provision at the time of the accident, he could have refused his union president‘s directive to take the test and been subject to - as he readily acknowledged during the suppression hearing - an “[a]utomatic thirty day suspension with possible termination,” (R. at 84), in lieu of the criminal prosecution he now faces. While these alternatives may have been unpleasant, they were alternatives; Oman was not compelled.
B-2
We also disagree with Oman‘s second contention that the results of his toxicological testing were received by law enforcement authorities in violation of the confidentiality provisions contained in the Ordinance. Oman‘s claim that he has a reasonable expectation of privacy arising from the confidentiality provisions is refuted by the plain language of the Ordinance, which clearly states: “Disclosure of test results without the written authorization of the employee ... shall not be made except when[] the information is compelled by law or by judicial and administrative process.” (R. at 77) (emphasis added).25 Compare Skinner, 489 U.S. at 621 n. 5 (acknowledging that the test results obtained under the FRA regulations could “be made available to ... a party in litigation upon service of appropriate compulsory process on the custodian’ “) (quoting
The plain language of the Ordinance aside, the disclosure provision is not inconsistent with Oman‘s reasonable expectation of privacy under either federal or state law.27
B-3-a
As a matter of federal law, an individual does have a privacy interest in his or her bodily fluids. See Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977) (A person has an “individual interest in avoiding disclosure of personal matters.“). Nevertheless, the right to keep employer-mandated test results private is not absolute. See, e.g., Carrelli v. Ginsburg, 956 F.2d 598, 607 (6th Cir.1992) (upholding the constitutionality of an (Ohio) state horse racing commission drug testing program and reversing the district court‘s ruling that the commission violated an individual‘s privacy interest by repeatedly publicizing his positive test result for illegal drug use) (“Though the contours of constitutional confidentiality are murky, the positive test result, information contained in the urine, is not “private” in a constitutional sense.“) (citing Scheetz v. The Morning Call, Inc., 946 F.2d 202, 207 n. 5 (3d Cir.1991)).28
Furthermore, there is a large body of decisional law in similar contexts documenting lawful disclosure of otherwise confidential information in third party records in the face of valid compulsory legal process. For example, with regard to an individual‘s reasonable expectation of privacy in his or her medical records, federal courts follow the Supreme Court‘s lead in Whalen v. Roe, 429 U.S. 589 (1977), and apply a balancing test, considering the potential conflict between the patient‘s right to privacy and the asserted right of access to the rec-
B-3-b
As a matter of state law, we have not previously considered an individual‘s privacy interest in toxicological test results under the Indiana Constitution, and we decline to do so today. We do note, however, that a person who operates a vehicle in Indiana impliedly consents to submit to toxicological testing as a condition of operating that vehicle. See
Furthermore, Hoosiers enjoy only a limited expectation of privacy in similar contexts, such as banking records, when law enforcement seeks information contained therein as part of a valid criminal investigation. See Indiana Nat‘l Bank v. Chapman, 482 N.E.2d 474, 478-79 (Ind.Ct.App.1985) (holding that where a bank provided answers to an investigating officer‘s questions about the defendant‘s automobile loan, the “[b]ank‘s communication ... was not a ‘publicizing of one‘s private affairs with which the public has no legitimate concern,‘” so as not to “give rise to a private right of action for invasion of privacy“) (quoting Continental Optical Co. v. Reed, 119 Ind.App. 643, 86 N.E.2d 306, 308 (1949)), reh‘g denied.
C
In summary, we find that: (1) absent evidence to the contrary, Michigan City‘s Ordinance is constitutionally sound and typical of those government drug testing programs approved by the U.S. Supreme Court under its “special needs” exception to its Fourth Amendment doctrine; (2) the Ordinance disclosure provision implicated in this case is not inconsistent with Oman‘s reasonable expectation of privacy under either federal or state law; and (3) the results of Oman‘s administrative drug test can be used in a criminal prosecution against him, but only if obtained by
IV
A
Indiana prosecutors are statutorily empowered to investigate criminal activity without the aid of a grand jury and may issue subpoenas to gather both testimonial and documentary evidence. See
B
Acting on the knowledge that two fire trucks had collided during a fire run and a tip that one of the drivers had tested positive for marijuana use during his employer-mandated post-accident drug test, the deputy prosecutor in this case issued an investigative subpoena duces tecum, directing the Records Keeper of the NIMLS laboratory to produce the following: “Blood and/or urine test results of Fire-fighter Ron Oman, Sr., taken on or about April 28, 1998, taken to determine content of alcohol or controlled substances.” (R. at 61; Defendant‘s Ex. B.)
First, the subpoena was sufficiently limited in scope in that the deputy prosecutor only requested Oman‘s test results and not those of the other driver tested about which the prosecutor had received no additional information. Second, it is specific in directive so as not to be unduly burdensome in that the prosecutor only sought production of the April 28th test results and not other results possibly maintained by the lab.
Finally, the subpoena was relevant in purpose to a valid criminal investigation. We acknowledge Oman‘s concern that, absent proper safeguards, a prosecutor could conceivably “subpoena any employee‘s drug testing records if he heard that an employee had tested positive.” Appellant‘s Br. at 13. But there is a fundamental difference between Oman‘s hypothetical and the actual case before us today.
In the hypothetical, an employee‘s positive test result forms the initial evidentiary basis for charging an individual for illegal drug use. In such a situation, the prosecutor‘s subpoena would not relate to a valid criminal investigation. This is because the employer‘s testing program would produce the sole relevant initial evidence of criminal conduct. Such a use of a drug test would serve “the ordinary needs of law enforcement” in a manner disapproved of in Skinner and Von Raab.32
But Oman‘s positive test result did not form the initial evidentiary basis for charging him: Oman was, first and foremost, the driver of one of two fire trucks involved in an accident. This accident was
To reiterate: A prosecutor‘s subpoena duces tecum issued to a third party for the production of an employer-mandated drug test result is not relevant in purpose to a valid criminal investigation if the employee‘s positive test result forms the initial evidentiary basis for charging an individual with the commission of a crime. Applying this rule in this case, we find the subpoena was relevant in purpose to a valid criminal investigation.
Notwithstanding that a judge or magistrate did not review the subpoena prior to its issuance as per the rule we enunciate today,34 we find the investigative subpoena duces tecum was reasonable under the Fourth Amendment, and that the trial court did not err in denying Oman‘s motion to suppress his drug test results.
Conclusion
In summary, we conclude that: (1) a prosecutor acting without a grand jury must seek leave of court before issuing a subpoena duces tecum for the production of documentary evidence maintained by a third party; (2) the trial judge or magistrate will review this subpoena for reasonableness using the three-factor City of Seattle test; (3) government drug testing programs such as Michigan City‘s Ordinance are constitutionally justified under the U.S. Supreme Court‘s “special needs” exception to its Fourth Amendment doctrine; (4) Oman was not compelled to submit to toxicological testing in violation of his Fifth Amendment rights; (5) the Ordinance disclosure provision implicated in this case is not inconsistent with Oman‘s reasonable expectation of privacy under federal or state constitutional law; (6) toxicological test results from an employer administrative drug test are admissible in a criminal proceeding but only if obtained by valid legal process externally initiated from the employment setting; and (7) the deputy prosecutor in this case reasonably obtained Oman‘s test results by valid legal process in that the subpoena duces tecum was sufficiently limited in scope, specific in directive, and relevant in purpose to a valid criminal investigation, where the employee‘s positive test result did not form the initial evidentiary basis for charging the individual for the offense of driving while intoxicated.
We therefore grant transfer, vacate the opinion of the Court of Appeals, and remand to the trial court for further proceedings consistent with this opinion.
SHEPARD, C.J., and RUCKER, J., concur.
BOEHM, J., concurs in result with separate opinion in which DICKSON, J., concurs.
BOEHM, Justice, concurring in result.
I agree with the majority‘s result, but not with all of its reasoning. First, the majority notes that older cases seem rather clearly to assume, if not to hold, that an investigatory subpoena may be issued without court approval. The majority distinguishes these cases on the ground that they deal with subpoenas to testify, not with subpoenas requiring the production of physical evidence. I see no material difference between the two for purposes of determining whether a court‘s approval is required before a citizen can be haled before the grand jury. It seems to me that the new rule this Court announces today in the exercise of its supervisory powers is inconsistent with these precedents, and that we should acknowledge that conflict
Second, I do not believe it is fair to say that there is no evidence to suggest a breach of the confidentiality policy by whoever alerted the assistant chief of police to the positive result of Oman‘s test. Several factors suggest that the tipster was someone who administered the test, received the report pursuant to the confidentiality policy, or got the information from someone who did. The evidence here is not that some anonymous caller told the police to look into Oman‘s test. Nor is it that someone claimed that at or near the time of the accident Oman looked suspiciously like someone who had used a controlled substance. Either could easily have come from someone who observed Oman. Instead, the evidence is that the day after the accident, the assistant chief of police “heard” that Oman had tested positive, not just that there was a probability he might test positive. The fact that the information was passed on to the police so soon after the test, perhaps before Oman himself was informed of the results, strongly suggests that a person bound by the confidentiality policy was the unnamed tipster.
There is apparently no constitutional requirement that confidentiality be a component of a drug testing program to validate it against Fourth and Fourteenth Amendment challenges. See Skinner v. Railway Labor Executives’ Ass‘n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). Nonetheless, simple notions of fairness suggest that where an employer guarantees confidentiality and then breaks that promise, there is something wrong with using positive results to prosecute an employee. The issue here, however, is whether a breach of the confidentiality policy warrants suppression of the evidence in a criminal proceeding. In my view, other remedies, including disciplinary action against the source of the breach, should be sufficient to validate the policy. The exclusionary rule proposed by Oman is simply more than is required by the Constitution or by policy considerations to accomplish that goal. Accordingly, I concur in the result reached by the majority.
DICKSON, J., concurs.